Are you considering a career as whistle- blower?
There is a very
funny cartoon trending in the social media. It is about a teacher who
asked some pupils what they would like to be when they grow up. The
pupils all replied they would want to become whistleblowers.
The Federal government launched its
whistle-blowing policy in December 2016 to help expose financial crimes
and concomitantly strengthen its fight against corruption and impunity.
Domiciled at the Federal Ministry of Finance (FMF), it is hoped that
through the policy, more looted funds will be recovered. The policy has
three key components- the channels for reporting information and the
type of information to be reported, reward for reporting fraud (the
whistle-blower will get between 2.5 per cent and five per cent of the
recovered loot), and assurance of protection for whistle blowers.
There are several issues around the new policy:
One, a whistleblower is a person who
exposes any kind of information or activity that is deemed illegal and
unethical and which information is perceived to be in the public
interest. In the more advanced countries, most ‘whistleblowers’ do not
actually see themselves as ‘whistle-blowers’. They are usually ordinary
public servants who notice something untoward in their organizations and
pass on the information to appropriate investigative organs without any
monetary incentive to do so. Whistleblowers are animated by different
impulses: for some, it may be love of country, for others it may be
revenge and where there is monetary compensation for whistle-blowing, it
could be a simple love of cash.
Two, given the level of polarization in
Nigeria, it can be speculated that the reported high interest shown by
many to become whistle-blowers is driven more by the love for lucre
than any patriotic zeal. The twisted logic could be: if some could loot,
the new policy gives those who do not have such opportunity a chance to
get their own cut and level the playing field. It may be a perverted
sense of social justice. Just imagine if a whistle- blower gets the
minimum 2.5 per cent of the $43m reportedly found in an Ikoyi apartment
by the Economic and Financial Crimes Commission (EFCC). That will be
over $1m (N400m) - or several times more than what most ‘well-paid’
Nigerian professionals will ever make in their life time. In this
context I can see the sense in the cartoon where the pupils said they
would like to be whistleblowers when they grow up. However before you
start thinking of quitting your job (or folding your business) to get
your own cut, it will be wise to remember that there is a caveat to the
government’s promise of monetary reward: the whistle-blower will get
between 2.5 per cent (minimum) and five per cent (maximum) of the
recovered loot, only if “there is a voluntary return of stolen or
concealed public funds or assets on the account of the information
provided”. As we can see from what was recovered in the Ikoyi
apartment, the ownership could be contentious which could lead to
long-drawn legal battles. What happens to the whistle-blower in the
interim in terms of compensation? By the way we read that through the
help of a whistleblower, the EFCC discovered $9.8m and £74, 000 in a
building owned by a former group managing director of the Nigeria
National Petroleum Corporation (NNPC). It will be interesting to know if
the whistle-blower got the requisite financial compensation or not.
Additionally don’t forget that under the policy, if you make the
security agencies to waste their time digging some soak-away in the hope
of finding hidden treasures only for them to end up finding nothing but
stinking human waste, you could become a candidate for one of our
infamous prisons.
Three, the new euphoria about the
whistle blowing policy gives the wrong impression that there are no such
opportunities in our extant laws. Several times, the police and other
security agencies have placed bounties on the heads of some wanted
criminals and terrorists. We may want to know why there is usually not
much enthusiasm by the citizens in trying to seize such opportunities.
How many people utilize the help-lines offered by the police and other
security agencies? The reasons why the Police and the rest of the law
enforcement structures are not as trusted as in other countries will
also manifest with the whistle- blowing policy once the euphoria
settles.
Four, a very important question is how
sustainable the policy is. You can’t hope to make a career in
whistle-blowing if the policy is not sustained and we know that
sustainability is not this government’s strong suit. There have been
just too many policy summersaults that no one will be surprised if
nothing is heard about this again after a while or if the Minister of
Finance who is driving it is no longer around.
Five, crucial to any consideration of
making a career in whistle-blowing is whether there will be laws to
protect you from being harmed or victimized. What the policy offers so
far is not robust enough. It says: “If you [whistleblower] feel that you
have been treated badly because of your report, you can file a formal
complaint. If you have suffered harassment, intimidation or
victimisation, for sharing your concerns, restitution will be made for
any loss suffered”. We know our how our institutions work and how the
complaints you filed could be used against you.
Some supporters of the policy are hoping
that the National Assembly will pass the necessary legislation to give
legal teeth to the policy, including robust protection of
whistle-blowers. I support this because the law is always necessary and
useful in the implementation of any policy. However there are limits on
how far the law could be used to protect whistle blowers. For instance
while South Australia’s 1993 whistleblower Act looks excellent on paper
it has hardly helped in protecting any whistleblower. In the US, there
is the Whistleblower Protection Act of 1989 which stipulates that a
federal agency “violates the Whistleblower Protection Act if agency
authorities take (or threaten to take) retaliatory personnel action
against any employee or applicant because of disclosure of information
by that employee or applicant”. Despite this, the US Supreme Court in
Garcetti v. Ceballos (2006) held that government employees do not have
protection from retaliation by their employers under the First Amendment
of the Constitution when they speak pursuant to their official job
duties. In the UK, a 2015 survey by the law firm of Slater & Gordon
found that over half of whistleblowers in the UK were treated
differently at work after they raised their concerns and a third of them
felt isolated following raising a concern
Six, how will the whistle-blowing policy
impact on the extensive use of media trial by our corruption-fighting
contraptions? In our type of society where justice is believed to be
commoditized and the wheel of justice moves sluggishly, these
contraptions (especially the EFCC) seem to believe that the court of
public opinion is more important than the formal courts. For those who
lead the EFCC, the strategy seems to be: if you cannot win quickly at
the formal courts, there is the court of public opinion where many are
baying for the blood of their supposed class, ethnic and regional
enemies. It is much easier to pander to the court of public opinion and
be treated as a hero or heroine than going through the time-consuming
motion of proper sting operation and diligent gathering of evidence that
will ensure conviction at the law courts. But this strategy creates its
own problem as we have now seen with the cash haul at Osborne Tower’s
flats in Ikoyi - or what Nigerians now call ‘Ikoyigate’. First we were
told that $38m, £27000 and N23m were seized. However the dollar amount
quickly changed to $43m once the Nigerian Intelligence Agency claimed
ownership. People are asking what the EFCC planned to do with the $5m
differential and whether it had been transparent in its previous
disclosures. Additionally the EFCC initially linked the cash haul to
sacked NNPC director Mrs. Esther Nnamdi-Ogbue and when she denied, it
linked it to former Chairman of the PDP Alhaji Adamu Mu’azu, who also
denied. The haul has now variously been linked to founder of Ebony Life
Television, Mo Abudu, former Governor Peter Obi and Transport Minister,
Rotimi Amaechi, all of whom also denied ownership. The Nigerian
Intelligence Agency and the Rivers State Government are however both
claiming ownership. The bottom-line is that in its bid for a quick point
in the court of public opinion, the EFCC unwittingly exposed its
backside such that even some of its ardent admirers are now raising
questions about its professional competence. In essence, the
whistleblower policy may either force the EFCC to change its ways or
completely undermine it.
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